70 General Principles of Constitutional and Administrative Law

by government appointees were created to deal with the disputes

generated by this expansion of state activity. Other bodies outside the

traditional umbrella of parliamentary accountability were created to

run particular services or to give advice.

The constitution made only marginal responses to these fundamen-

tal changes. The traditional ideal of the rule of law as embodied in

the common law and of accountability to Parliament were not seriously

challenged even though the executive seemed to have outgrown both

these constraints. The Donoughmore Committee on Ministers’ Powers

(1932, Cmd. 4060) and the Franks Committee on Tribunals and

Inquiries (1958, Cmnd. 218) recommended marginal reforms which

strengthened the powers of the courts and supplemented parliamentary

scrutiny of the executive. These included a parliamentary committee to

scrutinise such subordinate legislation as statute required to be laid

before Parliament (Statutory Instruments Act 1946), increased rights of

appeal and the creation of a Council on Tribunals with powers to

approve procedural rules for most administrative tribunals and statu-

tory inquiries (Tribunals and Inquiries Acts 1958–92). From the 1960s

various ‘ombudsmen’ were set up to investigate complaints by citizens

against government but without enforceable powers.

Recognising the inevitability of executive discretion and reluctant

to appear to be challenging the majority, the courts began to defer to

political decisions, an attitude which was particularly strong after

the Second World War compared with the more robust attitudes

expressed earlier in the century (below Chapter 16)). Dicey (1915)

began to question his earlier belief in the rule of law. In the inter-

war period, both ends of the political spectrum were worried. Some

believed that the executive had taken over, others that an individua-

listically minded judiciary would frustrate popular programmes (see

Stephens, 1993). More recently, dating from the mid-1960s, the courts

have developed a more interventionist approach in relation to the

executive which continues today (see Sedley in Nolan, 1997).

4.4 The Concept of the State

There is no coherent concept of the state in English law which regards

government as comprising separate legal entities, Parliament, the

Crown, local authorities, the police etc. each of which is linked to the

others by pragmatic rules and practices. We use the terms ‘Queen’,

‘Crown’ ‘state’ and ‘nation’ with little discrimination. For example

we refer to secretaries and ministers of state but also to ministers of

71

The Structure of the UK Government: An Overview

the Crown and the Crown Prosecution Service. We refer to state

schools, state papers and state secrets but to National Insurance and

the National Health Service. The courts are the Queen’s courts, laws

are made by the Queen in Parliament but civil servants are servants

of the Crown. Central government property is Crown property unless

it is owned by an incorporated government department such as the

Ministry of Defence.

By contrast, in ‘statist’ constitutions such as those of France and

Germany, the various departments of government, and indeed the law

itself, emanate from a single monolithic state created by law and whose

powers are defined and limited by the law (rechtstaat). In statist theory

a constitution arises from the act of a ‘constituent power’ which might

for example be a revolution or a referendum of the people. The con-

stituent power creates the constitution which in turn creates the state

and authorises the enactment of laws in a logical self-contained

hierarchy. The courts interpret the laws of the state. They do not, as in

the common law system, provide their own independent source of law.

The term ‘state’ is sometimes used in legislation where its meaning

depends on the particular context. Sometimes the state means the

executive arm of government, sometimes the government as a whole,

and sometimes the ‘sovereign power’ (see e.g. General Medical Council

v. BBC (1998); D. v. NSPCC (1978)). In Chandler v. DPP (1964),

which concerned the Official Secrets Act 1911, Lord Devlin described

the state as ‘the organs of government of a national community’. Lord

Reid on the other hand thought that ‘the organised community’ was as

close to a definition as one can get (see also D. v. NSPCC (1978)).

There is a crucial ambiguity as to whether ‘the interests of the state’ are

taken to be the interests of the government as such or include the

broader interests of the people, usually expressed by the term ‘public

interest’. Sometimes the terms ‘nation’ and ‘state’ are used loosely

and interchangeably, for example where the law refers to ‘the national

interest’ or ‘national security’ (see Council of Civil Service Unions

(CCSU) v. Minister for the Civil Service (1985)).

The non-statist nature of English law has at least the following

important consequences:

. There is a distinction in statist constitutions between ‘public law’

which regulates the state itself and its relationship with citizens

through its powers of compulsion (imperium) and ‘private law’ which

the state uses to regulate the relationship between its citizens and that

between itself and citizens in connection with contracts or other

voluntary transactions. The UK does not have a concept of functions

72 General Principles of Constitutional and Administrative Law

that are peculiar to the state although in some contexts, such as

human rights and judicial review such a concept may be developing.

In some constitutions the notion of the ‘police power’ encapsulates

powers inherent in the nature of government. Not surprisingly the

limits of the police power are controversial. Traditionally the police

power relates to ‘peace, order and good government’ and includes

the protection of ‘public safety, health and morals’ (see Berman v.

Parker 348 US 26 (1954) at 32; Commonwealth Constitution

(Australia) s. 51).

. In a non-statist framework, officials are on the face of it the same

as ordinary persons so that, unless a particular law provides other-

wise, public servants have no special powers or status and are

individually responsible for any legal wrongs they commit. This

depends on ensuring that public bodies keep within powers given

to them by particular statutes (e.g. R. v. Somerset County Council ex

parte Fewings (1995)). In M v. Home Office (1993) the House of

Lords insisted that a court order was enforceable against a govern-

ment minister as such even if the Crown itself was immune. Lord

Templeman remarked (at 541) that to hold otherwise would reverse

the result of the civil war.

. Our non-statist tradition means that government powers can be

distributed haphazardly between government bodies proper, and

private bodies. Contemporary privatisation policies are an example.

There are some advantages in this. Particular decision-making

bodies must be openly identified and cannot hide under the general

state umbrella. There are also disadvantages in that there seems to

be no constitutional principle to prevent public powers being farmed

out to bodies that are not democratically accountable. There is

no clear notion of what is a public body or a public function. The

matter depends on the particular context. For example the Freedom

of Information Act 2000 and the Regulation of Investigatory Powers

Act 2000 provides a list of public bodies which can be altered by

ministers. The Government Reserves and Accounts Act 2000 refers

to a ‘government department or a body exercising public functions’

(s. 7 (3)). The Human Rights Act 1998 s. 6 contemplates that some

bodies exercise a mixture of public and private functions but other-

wise does not provide a definition. For example the exercise of

statutory powers to regulate businesses is clearly a public function,

but voluntary bodies such as the Jockey Club also influence impor-

tant areas of public life.

. In a statist system the state is both a creation of the law and the

producer of law. The judges are the authoritative interpreters of

73

The Structure of the UK Government: An Overview

the law but not its creators. Judicial opinions are regarded as

making more concrete the laws emanating from the state but do not

traditionally have an independent law-making role. Judgements are

often short with little detailed reasoning and dissenting opinions

are not normally published. By contrast the historical basis of the

common law gives the courts an independent basis of legitimacy.

The authority of the common law lies in community values and

does not depend on a theory of the state. In the common law sys-

tem, the judges are regarded as individuals charged with doing

justice. Judicial decisions are normally fully reasoned and dissents

are published.

The traditional state has been attacked both from without and

within. The ‘global economy’ is a fashionable idea. It will be recalled

from Chapter 2 that the origins of the state were military as a method of

defending a community against foreign aggression. Until the Second

World War the international community was regarded as a Hobbesian

state of nature while the rule of law operated within state boundaries.

However, the Second World War persuaded the international com-

munity to develop common principles for defence and for regulating

the economy, the environment and human rights through bodies such

as NATO, the World Trade Organisation, and the Council of Europe.

Technology has speeded up communications and flows of resources

to such an extent that states have become economically and militarily

interdependent to a much greater extent than before. Some large

international firms are wealthier than many states and it is often

suggested that private bodies, and small local communities, can provide

welfare services more efficiently than can governments in that govern-

ments cannot obtain sufficient information for the task. Moreover the

balance of power that concentrated military efforts on perceived

threats from identifiable states was destroyed in the 1980s by the

collapse of the Soviet Union. This released pressures based on ethnic,

religious and racial conflicts and led to an increased concern with

terrorism, with large-scale population movements and with human

rights all of which transcend state boundaries.

These developments do not, however, make the nation state redund-

ant. The core Hobbesian task of keeping order cannot be carried out

without a central authority. Indeed sentiments about globalisation and

the obsolescence of the nation state, similar to those expressed today,

were widely expressed in the nineteenth and early twentieth centuries

until the dream was interrupted by the First World War. Moreover

territorial units seem to cater for an essential human need. The state

74 General Principles of Constitutional and Administrative Law

therefore remains vital as a guarantor of order, a major contributor to

economic well-being and a last resort for the vulnerable.

4.5 The Legislature

The legislature is composed of the Queen in Parliament and is com-

monly believed to have unlimited legal power, although in recent years

this has been subject to considerable questioning. By convention the

Queen is bound to assent to any bill presented to her by Parliament.

By convention Parliament must meet annually and by law expires

automatically after five years unless it is dissolved earlier. The prime

minister by convention can require the Queen to dissolve Parliament

and must do so if the government loses the confidence of the Com-

mons. Upon dissolution there must by law be a general election.

Parliament is bi-cameral. The House of Commons is elected. Its role

is to make legislation to sustain the government by providing it with

funds, to hold the government to account, to debate matters of public

concern and to redress individual grievances, The House of Commons

is superior to the House of Lords. The House of Lords comprising

nearly 700 members is one of the largest legislative bodies in the world,

is wholly non-elected and most of its members are entitled to sit for

life. The House of Lords is normally confined to revising the details of

legislation proposed by the Commons, holding general debates and

reporting on matters of public concern through its committees. It acts

as a limited check on the Commons in that it can delay legislation to

give time for second thoughts. Subject to certain exceptions the Lords

cannot veto legislation. The most important of these exceptions is a

bill to extend the life of a Parliament which would enable the govern-

ment to avoid facing an election. The government proposes to reform

the House of Lords but there is no consensus as to whether or not it

should become an elected chamber.

4.5.1 Referendums

Referendums have traditionally been regarded as constitutional anom-

alies in that they seem to conflict with the principle of representative

democracy. On the few occasions on which they have been used

referendums have been governed by particular statutes and have been

advisory only, leaving Parliament with the last word. In recent years

referendums have been used more frequently, in connection with

general constitutional matters notably devolution to Scotland, Wales

and Northern Ireland. The Local Government Act 2000 also contains

75

The Structure of the UK Government: An Overview

provisions for referendums which can veto proposals to introduce new

executive arrangements (see Chapter 8).

The Political Parties, Elections and Referendums Act 2000 has given

referendums a general legal framework. Under the Act a referendum is

defined as where ‘one or more questions specified by or under an Act

of Parliament’ are put to the voters (s. 101 (2)). First the Act has

imposed controls over campaign expenditure in relation to referen-

dums similar to those applicable to parliamentary elections. The Act

also introduced measures designed to enhance the fairness of a refer-

endum campaign. First, after the relevant bill authorising a referendum

has been introduced, the Electoral Commission can publish views as to

the intelligibility of the wording of the question (s. 104). However, this

would not allow the Commission to comment on whether the question

is biased in favour of the answer the government hopes for. Secondly

the Act designates ‘permitted participants’. These include the follow-

ing: registered parties, resident individuals or those on the electoral

register, firms, voluntary bodies etc. based in the UK. Thirdly the Act

empowers the Commission to give grants of up to £1,000,000 to one

designated applicant representing each outcome in the campaign. This

is intended to encourage bodies such as pressure groups to join forces

so as to focus the issues. The designated applicants can also have free

facilities including a referendum address, room for a public meeting

and a campaign broadcast.

4.6 The Central Executive

In legal theory the Crown is the executive but by convention can act

only on the advice of ministers. For most practical purposes, the Crown

is represented by the government of the day. The executive enforces the

law and makes and implements government policy. Historically, all

executive powers were vested in the Crown subject to rights established

by the common law or by particular charters and customs (cf. Magna

Carta, 1215). The distinction between the functions of lawmaker and

executive is blurred in that in practice the executive is the primary

generator of law the legislature being confined to the more passive role

of approving or amending laws proposed by the executive. In strict law

the legislature may be the most important part of the constitution but

in practice the executive is the dominant force.

Executive bodies have no legal powers other than those conferred by

statute. There are two exceptions to this. First the Crown has a residue

of inherent power as head of state (the royal prerogative). Since the

seventeenth century most royal prerogative powers have been abolished

76 General Principles of Constitutional and Administrative Law

and it has become clear that new prerogatives cannot be created except

by statute. Nevertheless prerogative powers still pose problems in that

they can be exercised by ministers without the need for parliamentary

approval and might therefore escape democratic scrutiny. Secondly a

constable (and possibly any citizen) has a common law power to take

reasonable steps to prevent a breach of the peace. This might involve for

example entering private premises or preventing public access to land

(see Chapter 19).

Most powers are conferred by statute on specific ministers and there

are no particular constitutional principles relating to the form and

structure of the executive. Indeed it is widely accepted that the execu-

tive should have the freedom to determine its own internal organisa-

tion. In a general sense the executive comprises the Crown together

with all bodies exercising power to enforce or implement the law. There

are a wide variety of such bodies ranging from elected multi-function

local authorities to specialised tribunals and advisory bodies.

The prime minister is in practice the chief executive although he has

few legal powers. By convention the prime minister is the leader of the

majority party in the Commons. He has two fundamental powers,

namely to appoint and dismiss other ministers and to dissolve Parlia-

ment. The prime minister has other important powers, mainly based on

convention which give the holder of the office unique political influ-

ence. Senior ministers under the chair of the prime minister form the

cabinet which is responsible for overall government policy. The prime

minister is also the minister for the civil service.